Slovenia - The Supreme Court of Republic of Slovenia, 16 September 2015, Judgment I Up 112/2015

Country of Decision:
Country of Applicant:
Date of Decision:
16-09-2015
Citation:
I Up 112/2015
Court Name:
The Supreme Court of the Republic of Slovenia
National / Other Legislative Provisions:
Slovenia - Constitution Art 35
Slovenia - Constitution Art 53
Slovenia - Constitution Art 56
Slovenia - International Protection Act (ZMZ) Art (16)b
Slovenia - International protection Act (ZMZ) Art 17
Printer-friendly versionPrinter-friendly versionPDF version of SummaryPDF version of Summary
Headnote: 

When balancing the applicant’s right to family reunification and the protection of the rights of others in relation to the welfare of the state, which would be lessened if the application for family reunification were approved, the Supreme Court favours the latter since according to the jurisprudence of the ECtHR, countries enjoy a certain margin of appreciation when protecting the right to family life. 

Facts: 

A Somali minor was granted refugee status and he applied for family reunification with his parents. The Asylum authority rejected his application one year and five months after the application was submitted and one day before the Applicant turned 18 years old. The Asylum authority rejected the application stating that the Applicant did not sufficiently establish that the links with his parents are strong enough to justify family reunification. The Administrative court agreed with this reasoning regarding the father, but established that the Applicant had exercised family life with his mother before he left Somalia and that he is still connected with her. However, in the light of the principle of proportionality, when balancing the Applicant's right to reunification with his mother and the protection of the rights of others in relation to the welfare of the state, which would be in the event of approval of the Applicant's application reduced for an indefinite period, favoured the latter and dismissed the appeal.

Decision & Reasoning: 

The Supreme Court agreed with the reasoning of the Administrative court.

Positive obligations under Article 8 of ECHR bind the state only if it comes to economic and social interdependence of family member(s) legally residing in a Member State. The Administrative court correctly observed that, according to the established case-law of the ECtHR relating to Article 8, the issue of (non) existence of family life in each individual case is a matter of facts, which depends on the real existence of close personal ties, and that in cases of family reunification the child's age and level of dependency of a child on the parents have to be taken into account (eg. Jeunesse v. Netherlands).

The Supreme court agrees that in balancing the right of the Applicant and the interest of others in relation to the welfare of the State, the later prevails, because according to the jurisprudence of the ECtHR, countries enjoy a certain margin of appreciation (Berisha v. Switzerland, Jeunesse v. Netherlands, E.M. v. Sweden).

The Supreme Court further agrees that the right under Article 10(3)(a) of the Family Reunification Directive is not absolute and it also does not matter that the best interest of the child should be taken into account and the need for a child to maintain regular personal contact with his/her father and mother (Articles 24(2) and 24(3) of the EU Charter). Rights under Article 7 and Article 24(3) of the EU Charter are not absolute, since Article 52(1) provides the possibility of limiting the rights under the Charter. Taking into account the principle of proportionality, limitations may be made only if they are necessary and genuinely meet the objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. The Constitutional Court also already stated that Article 8 of the ECHR does not provide an absolute (unconditional) right to refugees to respect their family life, since it is necessary to find a proper balance between the competing interests of the individual and society as a whole and take into account concerns regarding the protection of public security or the economic well-being of the country, which may be important in order to determine the proper balance.

The Supreme Court also considers that notwithstanding the fact that under Article 5 of the Family Reunification Directive the Asylum authority should decide on a family reunification request within nine months, the Asylum authority cannot be criticized for delaying the procedure despite the fact that it adopted a decision one year and five months after the application and a day before the Applicant turned 18. In the present case, exceptional circumstances were present, as provided in Article 5(4)(2) of the Directive. The establishment of evidence in the present case is not easy; in addition, the Applicant himself partially extended the process because he went to Finland without having informed the competent authority, who could only issue a decision once the applicant submitted documentation and which would consequentially require the applicant’s presence in Slovenia.  

Outcome: 

The Supreme Court confirmed the decision of the Administrative court which rejected the appeal. 

Case Law Cited: 

Slovenia - Constitutional Court, Up 981/13-20

ECtHR - Jeunesse v. the Netherlands [GC], no. 12738/10

ECtHR - Berisha v. Switzerland, Application no. 948/12